COVID-19 and Employment | Reopening the workplace (August 2020)
What is the current stage and what are the anticipated stages in re-opening the workplace in Switzerland?
The Federal Council’s recommendation to work from home no longer applies. As a consequence, very few companies, mainly banks and global companies, still uphold home-office.
However, employer has to ensure the official protective measures with regard to hygiene and social distancing (1.5 meters) at work (see sector-specific COVID-19 hygiene and social distancing concepts elaborated by the corresponding associations).
In addition, employer shall allow those employees using public transportation to shape their working hours as flexible as possible in order to avoid rush hours in public transportation. Since July 6, 2020, it is compulsory to wear a mask in public transportation throughout Switzerland. And certain Cantons have imposed the general obligation to wear a mask in public space, as the responsibility for combating COVID-19 no longer lies within the competence of the State, but of the Cantons. Cantons may therefore impose measures beyond the general measures imposed by the Swiss Council.
Since 22 June 2020, employees belonging to the category of persons at high risk no longer require special protection.
Furthermore, since July 6, 2020, there is a quarantine obligation for persons entering Switzerland from certain countries. Persons entering Switzerland from countries categorized as risk countries as per the corresponding COVID-19 Ordinance, must remain in quarantine for 10 days. The list is being updated on a regular basis taking into consideration the country-specific status of COVID-19. Employees are not allowed to compensation for loss of earnings for such 10 day’s-quarantine. Employees who e.g. decide to make holidays in a “country of risk”, must undergo a mandatory quarantine at their own cost.
Health and safety at work during re-opening the workplace, what are the Employer’s obliga-tions in Switzerland?
The employer has a general statutory obligation to avoid any negative impact on employee’s health and safety at work. In this line, the employer must ensure that the requirements imposed by the Federal Council and the Federal Office of Public Health with regards to COVID-19 are complied with and implemented at work. Wherever the 1.5 meter social distancing measure cannot be implemented, special safety measures such as wearing a mask or installing a plexiglas protective “wall”, must be implemented.
Finally, since 25 June 2020, a COVID-19 Swiss specific tracing App is in place. The Federal Council and the Federal Office of Public Health recommend that all citizens download and activate the App in view of avoiding a second wave. It is recommendable to advice the employees to download and activate the App, for their and the other employees’ safety.
Can the Employer ask the personnel to take out a health questionnaire before returning to the office? Is it possible to take the temperature at the entrance of the building?
The employer may (at its cost) ask the employee to undergo a health examination by employer’s medical officer. However, and based on his professional secret, the medical officer may inform the employer only about employee’s ability to work without providing the employer any specific details on employee’s health status.
According to the Federal Data Protection and Information Commissioner the employer has the right to install, at the entrance of its building, an infrared camera which measures the temperature of the employee, subject to fulfillment of the following cumulative conditions:
- An information sign indicating the existence of the camera must be placed outside the field of view of the camera
- The pictures made by the camera must not be recorded, but must be examined by the security staff online only
- For those employees who do not want to be filmed by the camera, a separate entrance must be provided where these employees may take their temperature themselves
The employer has the right to prevent those employees with fever from entering the workplace.
Does the Employer have to pay salaries when an employee refuses to come to work due to fear of the COVID-19 virus?
The governmental recommendation to perform work from home no longer being upheld and no longer being applicable even for particularly vulnerable persons, the fear of infection alone is not enough to stay at home whilst continuing receiving the salary.
Does the Employer have to agree in the future to employees working from home because they were allowed to work from home during lockdown?
Swiss law does not provide for a right to work from home. Whether the employee is entitled to home office therefore depends on whether such right has been agreed upon either in the course of the individual employment contract or subsequently in the course of an amendment thereto.
If the right to home office work due to the lockdown has therefore been ordered for this specific period only, the employee has no right to uphold such right, unless the employer agrees to it.
What are the best practices for re-opening the workplace in Switzerland?
- Synchronized implementation of both all recommendations of the Government and the protection concept of the sector-specific association
- Communicate the implemented measures to all employees
- Allow employees to implement additional safety measures at work such as wearing a mask
- Ask employees on a regular basis whether they feel safe at work
- Allow employees to submit measures on how to best protect them at work
COVID-19 Employment Policies
Update on July 2020
Since 1 June 2020 and ending 31 August 2020, a revised COVID-19 specific entitlement to short-time work compensation applies.
Persons in an employer-like position, assisting spouses or registered partners and apprentices no longer qualify short-time work compensation.
However and despite the easing measures, a revised COVID-19 specific ordinance of 1 July 2020 entitles persons in an employer-like position in the event industry to short-time work compensation, retroactively as of the lockdown.
In addition, as of 1 September 2020 and ending 31 December 2021, a revised COVID-19 specific ordinance will take effect allowing employers to apply for short-work compensation for their employees during 18 instead of 12 months only, subject to offsetting overtime first.
I run a business and (a) had to shut it down or (b) have a significant reduction of business due to COVID-19. Is there an alternative to terminating the contracts with the employees?
The employer can apply for short-time work for all employees (including cross-border commuters and for himself as self-employed independently of whether its company is organized as a corporation or not) at the Public Employment Agency. However, for persons in an employer-like position, assisting spouses or registered partners and apprentices, the extraordinary entitlement to short-time work ceases at the end of May 2020.
- The employee has not already reached the retirement age
- The employment contract has not already been terminated before COVID-19
- The employee agrees to short-time work
- The loss of working hours is identifiable
- The working time is measurable
- The working time is recorded
- The loss of working hours is temporary
- The loss of working hours accounts for at least 10% of the total hours normally worked by the employee
- The economically induced loss of working hours is due to COVID-19
The short-work system works as follows:
- The employer applies for short-work at the competent authority
- The employer must claim for the compensation within 3 months following the end of the month for which its application has been approved
- The maximum period to be granted short-work for is 12 months within a period of 2 years
- The compensation is given even if the shortfall of work is > 85% during > 4 months
- The employer pays the employee 80% of its shortfall of work (with a CAP of CHF 12’350/month) whereby the employer may deduct a 100% of the employee’s social security deductions
- The employer receives the corresponding compensation from the Public Unemployment Insurance (i.e. 80% of the employee’s salary for the shortfall of work + 100% of the employer’s part of the social securities)
- The employer may ask for the advance payment of the compensation in order to be able to pay the salary of the employee in time
- The employer receives the compensation as of day 1 of the month the short-work has been applied for
- The application is valid for a period of 6 months, ending 31 August 2020
- The employer has to keep all relevant documentation during a period of 5 years
- For new applications (i.e. for companies which have not yet applied for short-work during COVID-19) the ordinary pre-registration period of 10 days will apply again
The forms for the registration of short-time work can be found at:
I hired someone right before COVID-19 broke out, and the person has not yet started to work. Can I take my employment offer back?
Swiss law knows the principle of freedom to dismiss. The principle applies anytime, i.e. also before the employee actually starts to work. Namely for economic reasons, the employer is, as a general rule, free to dismiss any employer without consequences. Special attention is to be given to the applicable termination period.
Can I impose my employees to take their remaining days of paid leave?
Normally, the employee has to agree to such compensation.
However, based on the employee’s general duty of loyalty, she/he has to agree to compensation when employer’s preponderant interests so require (i.e. for urgent operational needs which were not foreseeable) and no major interests of the employee speak against it.
The employer must not force the employee to take compulsory holidays in excess of her/his holiday entitlement.
How to deal with employees that cannot go to work/provide work from home, because they have to take care of their children?
Are they allowed to stay at home?
The answer depends on the work to be provided by the employee.
The Government has obliged the Cantons to guarantee for the necessary infrastructure for those children < 12 years who cannot be taken care of on a private level. As a consequence, undergraduate schools have remained open and have provided a special care program for those children whose parents have to go to work (e.g. nurses, logisticians, workers in food shops).
Further and for the same reason, the Government has forbidden day-cares to close. Finally, the Government has forbidden that children be taken care of by persons at high risk (namely grand-parents).
Consequently, all those parents who can work from home, are allowed to stay at home, although the Government has only mandatorily imposed home-office for employees belonging to the category of persons at high risk.
Is the employer obliged to continued payment?
In order to relieve the employer from the financial losses due to the reduced work capacity, the employer is allowed to apply short-work for the parent-employee.
Subsidiarily, the parent-employee qualifies for a COVID-19 daily allowance as of the forth day off work due to having to take care of her/his children < 12 years.
The employer has to come up for the first three days off work which corresponds to the ordinary period for which the employer is obliged to continued payment in case a parent-employee stays home to care for sick children.
What should I do if there is still some business to do?
Although the Government has been recommending home-office for all employees to the extent possible, home-office has not been mandatory
Consequently, as long as the employer ensures for the official protective measures with regard to hygiene and social distancing at the workplace (see sector-specific COVID-19 hygiene and social distancing concepts elaborated by the corresponding associations), employees have the duty to go to work. The employer shall, however, make the working hours of employees using public transportation as flexible as possible in order to avoid rush hours in public transport.
Do I have the right to terminate employment contracts during the state of emergency?
However, special attention is to be given to employees belonging to the category of persons at high risk where neither work at the workplace nor from home is feasible. The court might (a) apply the protective blocking period (30 days in the first year of service, 60 days in the second until the fifth year and 180 days from thereon) applicable in case of illness and consider the termination expressed within this period to be void, or (b) consider the termination expressed after expiration of such period to be abusive (unlawful termination based on personal characteristic “age” and/or “disease”) with a compensation of up to 6 months salary. The abusiveness would probably be denied in case termination was unavoidable for economic reasons. An alternative could be to apply for short-time work.